Law Commons^™

Overqualified And Underrepresented: Gender Inequality In Pharmaceutical Patent Law, S. Sean Tu, Paul R. Gugliuzza, Amy Semet

Journal Articles

Pharmaceutical patents represent some of the most valuable intellectual property assets in the world: they can be worth billions of dollars if courts uphold their validity and find them infringed. But, if invalidated, generic drug manufacturers can get to market earlier, generating billions of dollars of revenue for themselves and creating enormous savings for consumers. Accordingly, drug patents are the product of careful, high-cost prosecution and are associated with high-stakes, bet-the-company litigation. But women lawyers are noticeably absent from pharmaceutical patent practice. This article reports an original empirical study finding that women comprise only one-third of the top pharmaceutical patent …

Title Ix In Historical Context: 50 Years Of Progress And Political Gamesmanship, Helen A. Drew, Marissa Egloff, Josie Middione

Journal Articles

On the fiftieth anniversary of Title IX, it is important to recognize both its historic nature and how it has evolved in political and social context. This Article will begin by examining the history of women’s athletics pre–Title IX, focusing on what activities women participated in, why, and how societal norms shaped their ability to do so. Next, the Article will examine the status of women’s athletic opportunities as Title IX was first proposed, with an emphasis upon its nexus to the women’s rights movement and the Equal Rights Amendment initiative. The Article will then provide historical background for key …

The Dilemma Of Liberal Pluralism, Abner S. Greene

Buffalo Law Review

Supporters of reproductive rights and of queer rights may sometimes live in harmony with advocates for religious exemptions. But sometimes these goals conflict. This Article explores this tension as a matter of liberal democratic theory and U.S. constitutional law, offering a case for seeing a robust pluralism as contained within a proper understanding of the liberal democratic state. The state’s claimed authority may be the starting point, but just as the modern state was born in decentralized religious toleration, so should the modern state accommodate religious and other views of the good that compete with the state’s own views. The …

Factors, Scott Rempell

Buffalo Law Review

No abstract provided.

Release The River: Recognizing Legal Rights For Natural Objects To Remedy Continuing Issues In American Environmental Law, Eamon Danieu

Buffalo Law Review

No abstract provided.

Rules Vs. Standards In Private Ordering, Tomer S. Stein

Buffalo Law Review

The tradeoff between bright-line rules and general standards is one of the bedrocks of law design. This tradeoff determines how legal norms are composed. The tradeoff between rules and standards pervasively affects private ordering as well: it determines how contractual norms are composed. Yet, scholars exploring the rule vs. standard dichotomy have either entirely overlooked the tradeoff taking place in private orderings or equated it with the public tradeoff that dominates lawmaking.

This Article is the first to systematically examine the rule vs. standard tradeoff in private orderings. The Article carries out this task by identifying and analyzing the fundamental …

Tenure In New York, Matthew W. Finkin

Buffalo Law Review

No abstract provided.

Preface, Rebecca Redwood French

Contributions to Books

No abstract provided.

By The Inch, It’S A Cinch: The Case For Go-Ing Slow In First-Year Legal Writing Courses, Patrick J. Long

Journal Articles

No abstract provided.

While Waiting For Rain: Community, Economy, And Law In A Time Of Change, John Henry Schlegel

Books

What might a sensible community choose to do if its economy has fallen apart and becoming a ghost town is not an acceptable option? Unfortunately, answers to this question have long been measured against an implicit standard: the postwar economy of the 1950s. After showing why that economy provides an implausible standard—made possible by the lack of economic competition from the European and Asian countries, winners or losers, touched by the war—John Henry Schlegel attempts to answer the question of what to do.

While Waiting for Rain first examines the economic history of the United States as well as that …

Refashioning Old Tools For Modern Society, Christine P. Bartholomew

Book Reviews

Reviewing Peter Ormerod, Privacy Qui Tams, 98 Notre Dame L. Rev. __ (forthcoming 2023), available at SSRN.

Swimming With Broad Strokes: Publishing And Presenting Beyond The Lw Discipline, Robin Boyle-Laisure, Stephen Paskey

Journal Articles

No abstract provided.

Citation Sources For Legal Scholarship: Ranking The Top 28 Law Faculties, John R. Beatty

Law Librarian Contributions to Books

This study examines the effects of the data source on citation metrics and faculty rankings by comparing three sources of legal scholarship citation data: Google Scholar, Westlaw, and HeinOnline. It compares six years of citations to works by all of the tenured and tenure-track members of the top twenty-eight faculties as determined by two recent legal citation studies. Rankings generated using the Leiter-Sisk method on the data from the three sources showed moderate to high correlation (0. 77 to 0. 96) to each other. Total citations and total publications for each faculty were moderately to highly correlated to rankings, while …

The Rise And Fall Of Group Libel: The Forgotten Campaign For Hate Speech Laws, Samantha Barbas

Journal Articles

It is well-known that there is no “hate speech” law in the United States. This has been criticized, especially given the existence of robust hate speech laws in other nations. The absence of hate speech laws in American law has been attributed to legal, cultural, and historical factors, including speech protective First Amendment jurisprudence and long-standing skepticism of group reputation as an interest worthy of legal protection.

This Article presents another reason for the absence of hate speech laws in America: the failure of a large-scale social movement in the 1940s to pass hate speech laws or “group libel” laws, …

Police Killings As Felony Murder, Guyora Binder, Ekow Yankah

Journal Articles

The widely applauded conviction of officer Derek Chauvin for the murder of George Floyd employedthe widely criticized felony murder rule. Should we use felony murder as a tool to check discriminatory and violent policing? The authors object that felony murder—although perhaps the only murder charge available for this killing under Minnesota law—understated Chauvin’s culpability and thereby inadequately denounced his crime. They show that further opportunities to prosecute police for felony murder are quite limited. Further, a substantial minority of states impose felony murder liability for any death proximately caused by a felony, even if the actual killer was a police …

Genetic Freedom Of The Seas In The Age Of Extractivism: Marine Genetic Resources In Areas Beyond National Jurisdiction, Irus Braverman

Contributions to Books

Areas beyond national jurisdiction are the largest environment on earth and marine genetic resources are its new, and perhaps final, frontier. It is no wonder, then, that the scope and protection of marine genetic resources in this oceanic space have been hotly contested and that a new doctrine for ocean governance has been coined in this context: mare geneticum. This chapter examines different definitions of marine genetic resources debated in the ongoing treaty negotiations over areas beyond national jurisdiction (the BBNJ), the conflicting interests involved, and how the law-science relationship has figured in these debates. Ultimately, many of the debates …

Amphibious Legal Geographies: Toward Land–Sea Regimes, Irus Braverman

Contributions to Books

This introduction presents an overview of the key concepts discussed in the subsequent chapters of this book. The book discusses the juridical thinking that has enshrined the land/sea divide into contemporary governmental infrastructures, disciplinary traditions, and regulatory apparatuses, and charts the disastrous implications that such a legal fixation on the land/sea binary has wrought on human and other-than-human lifeworlds. As the collection proceeds, a second broad theme emerges, building on the first: when one rethinks the abstraction of law as played out on the ground, the “ground” itself shifts and fundamental divisions between land and sea that serve as the …

Does Houchins V. Kqed, Inc. Matter?, Matthew L. Schafer

Buffalo Law Review

No abstract provided.

Workplace Anonymity, Jayne S. Ressler

Buffalo Law Review

No abstract provided.

Measuring Judicial Collegiality Through Dissent, Jonathan Remy Nash

Buffalo Law Review

While scholars frequently offer ideology as a primary explanation for judicial behavior, judges, and some scholars, emphasize the importance of collegiality on multimember courts. But there is disagreement over how to determine when collegiality is at work, and what type of multimember court is more likely to exhibit collegiality among its judges. Resolving these competing claims calls for a valid measure of collegiality.

This Article develops novel measures of collegiality based on dissenting judges’ expressions of collegiality towards judges in the majority. It uses judge-level and court-level databases to validate these measures by showing that the novel measures correlate with …

Reading Section 230, Shlomo Klapper

Buffalo Law Review

In Gonzalez v. Google, the Supreme Court, for the first time, agreed to hear a case concerning the interpretation of Section 230 of the Communications Decency Act, the most important law governing the internet. As Justice Thomas and others have noted, judges have overlooked Section 230’s text in interpreting the statute, relying instead on purpose. Yet scholars and critics, too, have eschewed the statutory text, relying on intent or consequences to favor alternate interpretations, but depriving the Court and litigants of the richness the statutory text offers.

This Article offers the first comprehensive analysis of Section 230’s text and structure. …

Wesley Newcomb Hohfeld: On The Difficulty Of Becoming A Law Professor, John Henry Schlegel

Contributions to Books

Published as Chapter 18 in Wesley Hohfeld A Century Later: Edited Major Works, Select Personal Papers, and Original Commentaries, Shyam Balganesh, Ted Sichelman & Henry Smith, eds.

Wesley Hohfeld (1879 - 1918) is well known to legal philosophers and to property teachers for his table of fundamental conceptions, a terminological framework for understanding legal doctrine and reasoning. This work was also substantively important for some members of the American Legal Realist movement and Critical Legal Studies. More personally he was part of the generation of law teachers who had to figure out how to become a professional academic in the …

The Betrayal Of The Red, White & Blue: The Failures Of Institutional Self-Regulation & The Military’S #Metoo Movement, Kristen M. Stone

Buffalo Law Review

No abstract provided.

The Principle Of Party Presentation, Jeffrey M. Anderson

Buffalo Law Review

Our adversarial system of adjudication is characterized by active parties and (relatively) passive judges; the parties identify the issues in dispute, and the judge decides those issues. Sua sponte decision-making—whereby a judge raises and decides new issues not presented by the parties—undermines this adversarial system. For decades, courts and commentators have struggled to explain when sua sponte decision-making may be appropriate. That issue was particularly important to the late Justice Ruth Bader Ginsburg, who has been described as “The Great Proceduralist.” In a series of oral arguments and opinions during her tenure on the Supreme Court, Justice Ginsburg repeatedly invoked …

Reforming Local Property For An Era Of National Decline, Daniel B. Rosenbaum

Buffalo Law Review

Following a century of rapid growth, the global human population is predicted to crest and then decline in the coming generations. Some industrialized countries are already grappling with the economic and societal consequences of population loss. Others, including the United States, have only started to realize that decline might arrive on their doorsteps far sooner than originally anticipated, a prospect for which policymakers and legal scholars are presently unprepared.

Global and national demographic change threaten to cause far-reaching dislocations, and local municipalities, too, will be asked to reckon with the aftermath. Yet local governance in the United States has long …

Unauthorized Tax Elections, Jay A. Soled

Buffalo Law Review

Unauthorized tax elections are those devices and techniques that taxpayers employ to achieve sought-after objectives but that are not specifically endorsed under the Internal Revenue Code. Often evolving over time, they are a common feature of the nation’s tax system. While unauthorized tax elections can prove subversive, in many instances, if properly and timely addressed, their existence can produce salutary benefits vis-à-vis their eradication or formal institutionalization.

This analysis explores the general contours of unauthorized tax elections and the critical signaling roles that they provide, alerting Congress and the Treasury Department to shortcomings and vulnerabilities in the Internal Revenue Code’s …

Antitrust Class Actions In The Wake Of Procedural Reform, Christine P. Bartholomew

Journal Articles

What is the current vitality of antitrust enforcement? Antitrust class actions—the primary mode of competition oversight—has weathered two decades of procedural reform. This Article documents the effects of those reforms. Relying on an original dataset of over 1300 antitrust class action settlements, this Article finds such cases alive but far from well. Certain suits do succeed on an impressive scale, returning billions of dollars to victims. But class action reform has made antitrust enforcement narrower, more time-consuming, and costlier than only a decade ago. And, as this Article’s sources reveal, new battle lines are forming. Across the political spectrum, people …

Segregation Autopilot: How The Government Perpetuates Segregation And How To Stop It, Heather R. Abraham

Journal Articles

Housing segregation is a defining feature of the American landscape. Scholars have thoroughly documented the government’s historic collusion in segregating people by race. But far from correcting its reprehensible past, the government continues to perpetuate housing segregation today. As if on autopilot, its spending and regulatory activities routinely reinforce housing segregation. Not only is this immoral and bad policy, it is against the law. The government has a statutory duty to conduct its business in a manner that reduces housing segregation. This duty arises from a unique civil rights directive passed by Congress over fifty years ago in the Fair …

Academic Brands And Cognitive Dissonance, Mark Bartholomew

Contributions to Books

Published as Chapter 7 in Academic Brands: Distinction in Global Higher Education (Mario Biagioli & Madhavi Sunder, eds., Cambridge University Press, 2022).

It is hard to reconcile the research university’s supposed reason for being – the reasoned pursuit of knowledge – with its methods for building brand awareness and equity. Just like pitches for other luxury goods, the selling of higher education depends on irrational appeals devoid of information and marketing missives meant to hug the line between legally protected puffery and outright fraud. Although universities have always borrowed from the selling strategies of the commercial sphere, in recent years, …

Defunding Police Agencies, Rick Su, Anthony O'Rourke, Guyora Binder

Journal Articles

This Article contextualizes the police defunding movement and the backlash it has generated. The defunding movement emerged from the work of Black-led activists to reassert democratic control over policing and shift resources to social service agencies and other institutions serving community needs. In reaction, states have enacted anti-defunding bills checking local government reduction of law enforcement budgets. These anti-defunding measures continue a long tradition of state and federal control over local police spending, subverting local democratic control over police agencies. These limits include direct legal constraints on local police spending and indirect constraints through grants and authorization to collect fines, …